Labour law

Labour law (also known as labor law or employment law) mediates the relationship between workers, employing entities, trade unions and the government. Collective labour law relates to the tripartite relationship between employee, employer and union. Individual labour law concerns employees' rights at work and through the contract for work. Employment standards are social norms (in some cases also technical standards) for the minimum socially acceptable conditions under which employees or contractors are allowed to work. Government agencies (such as the former US Employment Standards Administration) enforce labour law (legislative, regulatory, or judicial).

Labour law arose in parallel with the Industrial Revolution as the relationship between worker and employer changed from small-scale production studios to large-scale factories. Workers sought better conditions and the right to join (or avoid joining) a labour union, while employers sought a more predictable, flexible and less costly workforce. The state of labour law at any one time is therefore both the product of, and a component of struggles between various social forces.

As England was the first country to industrialise, it was also the first to face the often appalling consequences of industrial revolution in a less regulated economic framework. Over the course of the late 18th and early to mid-19th century the foundation for modern labour law was slowly laid, as some of the more egregious aspects of working conditions were steadily ameliorated through legislation. This was largely achieved through the concerted pressure from social reformers, notably Anthony Ashley-Cooper, 7th Earl of Shaftesbury, and others.

A serious outbreak of fever in 1784 in cotton mills near Manchester drew widespread public opinion against the use of children in dangerous conditions. A local inquiry, presided over by Dr Thomas Percival, was instituted by the justices of the peace for Lancashire, and the resulting report recommended the limitation of children's working hours.[1] In 1802, the first major piece of labour legislation was passed − the Health and Morals of Apprentices Act. This was the first, albeit modest, step towards the protection of labour. The act limited working hours to twelve a day and abolished night work. It required the provision of a basic level of education for all apprentices, as well as adequate sleeping accommodation and clothing.

The rapid industrialisation of manufacturing at the turn of the 19th century led to a rapid increase in child employment, and public opinion was steadily made aware of the terrible conditions these children were forced to endure. The Factory Act of 1819 was the outcome of the efforts of the industrialist Robert Owen and prohibited child labour under nine years of age and limited the working day to twelve. A great milestone in labour law was reached with the Factory Act of 1833, which limited the employment of children under eighteen years of age, prohibited all night work and, crucially, provided for inspectors to enforce the law. Pivotal in the campaigning for and the securing of this legislation were Michael Sadler and the Earl of Shaftesbury. This act was an important step forward, in that it mandated skilled inspection of workplaces and a rigorous enforcement of the law by an independent governmental body.

A lengthy campaign to limit the working day to ten hours was led by Shaftesbury, and included support from the Anglican Church.[2] Many committees were formed in support of the cause and some previously established groups lent their support as well.[3] The campaign finally led to the passage of the Factory Act of 1847, which restricted the working hours of women and children in British factories to effectively 10 hours per day.[4]

These early efforts were principally aimed at limiting child labour. From the mid-19th century, attention was first paid to the plight of working conditions for the workforce in general. In 1850, systematic reporting of fatal accidents was made compulsory, and basic safeguards for health, life and limb in the mines were put in place from 1855. Further regulations, relating to ventilation, fencing of disused shafts, signalling standards, and proper gauges and valves for steam-boilers and related machinery were also set down.

A series of further Acts, in 1860 and 1872 extended the legal provisions and strengthened safety provisions. Steady development of the coal industry, increasing association among miners, and increased scientific knowledge paved the way for the Coal Mines Act of 1872, which extended the legislation to similar industries. The same Act included the first comprehensive code of regulation to govern legal safeguards for health, life and limb. The presence of a more certified and competent management and increased levels of inspection were also provided for.

By the end of the century, a comprehensive set of regulations was in place in England that affected all industries. A similar system (with certain national differences) was implemented in other industrializing countries in the latter part of the 19th century and the early 20th century.

The basic feature of labour law in almost every country is that the rights and obligations of the worker and the employer are mediated through a contract of employment between the two. This has been the case since the collapse of feudalism. Many contract terms and conditions are covered by legislation or common law. In the US for example, the majority of state laws allow for employment to be "at will", meaning the employer can terminate an employee from a position for any reason, so long as the reason is not explicitly prohibited,[a] and, conversely, an employee may quit at any time, for any reason (or for no reason), and is not required to give notice.

The contract is subject to various legal provisions. An employer may not legally offer a contract that pays the worker less than a minimum wage. An employee may not agree to a contract that allows an employer to dismiss them for illegal reasons.[b]

Many jurisdictions define the minimum amount that a worker can be paid per hour. Algeria, Australia, Belgium, Brazil, Canada, China, France, Greece, Hungary, India, Ireland, Japan,South Korea, Luxembourg, the Netherlands, New Zealand, Paraguay, Portugal, Poland, Romania, Spain,Taiwan, the United Kingdom, the United States, Vietnam, Germany (in 2015[6]) and others have laws of this kind.[citation needed] The minimum wage is set usually higher than the lowest wage as determined by the forces of supply and demand in a free market and therefore acts as a price floor. Each country sets its own minimum wage laws and regulations, and while a majority of industrialized countries has a minimum wage, many developing countries do not.

Minimum wages are regulated and stipulated in some countries that lack explicit laws. In Sweden minimum wages are negotiated between the labour market parties (unions and employer organizations) through collective agreements that also cover non-union workers at workplaces with collective agreements. At workplaces without collective agreements there exist no minimum wages. Non-organized employers can sign substitute agreements directly with trade unions but far from all do. The Swedish case illustrates that in countries without statutory regulation will part of the labour market do not have regulated minimum wages, as self-regulation only applies to workplaces and employees covered by collective agreements (in Sweden about 90 per cent of employees).[7][8]

The maximum number of hours worked per day or other time interval are set by law in many countries. Such laws also control whether workers who work longer hours must be paid additional compensation.

Before the Industrial Revolution, the workday varied between 11 and 14 hours. With the growth of industrialism and the introduction of machinery, longer hours became far more common, reaching as high as 16 hours per day.

The eight-hour movement led to the first law on the length of a working day, passed in 1833 in England. It limited miners to 12 hours and children to 8 hours. The 10-hour day was established in 1848, and shorter hours with the same pay were gradually accepted thereafter. The 1802 Factory Act was the first labour law in the UK.

Germany was the next European country to pass labour laws; Chancellor Otto von Bismarck's main goal was to undermine the Social Democratic Party of Germany. In 1878, Bismarck instituted a variety of anti-socialist measures, but despite this, socialists continued gaining seats in the Reichstag. To appease the working class, he enacted a variety of paternalistic social reforms, which became the first type of social security. In 1883 the Health Insurance Act was passed, which entitled workers to health insurance; the worker paid two-thirds and the employer one-third of the premiums. Accident insurance was provided in 1884, while old age pensions and disability insurance followed in 1889. Other laws restricted the employment of women and children. These efforts, however, were not entirely successful; the working class largely remained unreconciled with Bismarck's conservative government.[citation needed]

Two girls wearing banners in Yiddish and English with the slogan "Abolish child slavery!!" at the 1909 International Workers' Day parade in New York City

Child labour was not seen as a problem throughout most of history, only disputed with the beginning of universal schooling and the concepts of labourers' and children's rights. Use of child labour was commonplace, often in factories. In England and Scotland in 1788, about two-thirds of persons working in water-powered textile factories were children.[18] Child labour can be factory work, mining or quarrying, agriculture, helping in the parents' business, operating a small business (such as selling food), or doing odd jobs. Children work as guides for tourists, sometimes combined with bringing in business for shops and restaurants (where they may also work). Other children do jobs such as assembling boxes or polishing shoes. However, rather than in factories and sweatshops, most child labour in the twenty-first century occurs in the informal sector, "selling on the street, at work in agriculture or hidden away in houses — far from the reach of official inspectors and from media scrutiny."[19]

Collective labour law concerns the relationship between employer, employee and trade unions. Trade unions (also "labor unions" in the US) are organizations which generally aim to promote the interests of their members.

Trade unions are organized groups of workers who engage in collective bargaining with employers. Some countries require unions and/or employers to follow particular procedures in pursuit of their goals. For example, some countries require that unions poll the membership to approve a strike or to approve using members' dues for political projects. Laws may govern the circumstances and procedures under which unions are formed. They may guarantee the right to join a union (banning employer discrimination), or remain silent in this respect. Some legal codes allow unions to obligate their members, such as the requirement to comply with a majority decision in a strike vote. Some restrict this, such as "right to work" legislation in parts of the United States.

In the different organization in the different countries trade union discuses with the employee on behalf of employer. At that time trade union discussed or talk with the manpower of the organization. At that time trade union perform his role like a bridge between the employee and employer.

A legally binding right for workers as a group to participate in workplace management is acknowledged in some form in most developed countries. In a majority of EU member states (for example, Germany, Sweden, and France) the workforce has a right to elect directors on the board of large corporations. This is usually called "codetermination" and currently most countries allow for the election of one third of the board, though the workforce can have the right to elect anywhere from a single director, to just under a half in Germany.
However, German company law uses a split board system, in which a "supervisory board" appoints an "executive board". Under the Mitbestimmunggesetz 1976, shareholders and employees elect the supervisory board in equal numbers, but the head of the supervisory board with a casting vote is a shareholder representative. The first statutes to introduce board level codetermination were in Britain, however most of these measures, except in universities, were removed in 1948 and 1979. The oldest surviving statute is found in the United States, in the Massachusetts Laws on manufacturing corporations, introduced in 1919, however this was always voluntary.

In the United Kingdom, similar proposals were drawn up, and a command paper produced named the Bullock Report (Industrial democracy) was released in 1977 by the James CallaghanLabour Party government. Unions would have directly elected half of the board. An "independent" element would also be added. However, the proposal was not enacted. The European Commission offered proposals for worker participation in the "fifth company law directive", which was also not implemented.

In Sweden, participation is regulated through the "Law on board representation". The law covers all private companies with 25 or more employees. In these companies, workers (usually through unions) have a right to appoint two board members and two substitutes. If the company has more than 1,000 employees, this rises to three members and three substitutes. It is common practice to allocate them among the major union coalitions.

A boycott is a refusal to buy, sell, or otherwise trade with an individual or business. Other tactics include go-slow, sabotage, work-to-rule, sit-in or en-masse not reporting to work.[20] Some labour law explicitly bans such activity, none explicitly allows it.

Picketing is often used by workers during strikes. They may congregate near the business they are striking against to make their presence felt, increase worker participation and dissuade (or prevent) strike breakers from entering the workplace. In many countries, this activity is restricted by law, by more general law restricting demonstrations, or by injunctions on particular pickets. For example, labour law may restrict secondary picketing (picketing a business connected with the company not directly with the dispute, such as a supplier), or flying pickets (mobile strikers who travel to join a picket). Laws may prohibit obstructing others from conducting lawful business; outlaw obstructive pickets allow court orders to restrict picketing locations or behaving in particular ways (shouting abuse, for example).

The labour movement has long been concerned that economic globalization would weaken worker bargaining power, as their employers could hire workers abroad to avoid domestic labour standards. Karl Marx said:

The extension of the principle of free trade, which induces between nations such a competition that the interest of the workman is liable to be lost sight of and sacrificed in the fierce international race between capitalists, demands that such organizations [unions] should be still further extended and made international.[21]

The International Labour Organization and the World Trade Organization have been a primary focus among international bodies for regulating labour markets. Conflicts arise when people work in more than one country. EU law has a growing body of workplace rules.

These require freedom to join a union, bargain collectively and take action (Conventions No. 87 and 98), abolition of forced labour (29 and 105), abolition of labour by children before the end of compulsory school (138 and 182), and no discrimination at work (No. 100 and 111). Member compliance with the core Conventions is obligatory, even if the country has not ratified the Convention in question. To ensure compliance, the ILO is limited to gathering evidence and reporting on member states' progress, relying on publicity to create pressure to reform. Global reports on core standards are produced yearly, while individual reports on countries who have ratified other Conventions are compiled on a bi-annual or less frequent basis.

Proponents have called for a "social clause" to be inserted into the GATT agreements, for example, by amending Article XX, which provides an exception that allows imposition of sanctions for breaches of human rights. An explicit reference to core labour standards could allow comparable action where a WTO member state breaches ILO standards. Opponents argue that such an approach could undermine labour rights, because industries, and therefore workforces could be harmed with no guarantee of reform. Furthermore, it was argued in the 1996 Singapore Ministerial Declaration 1996 that "the comparative advantage of countries, particularly low-age developing countries, must in no way be put into question."[23] Some countries want to take advantage of low wages and fewer rules as a comparative advantage to boost their economies. Another contested point is whether business moves production from high wage to low wage countries, given potential differences in worker productivity.[24] Since GATT, most trade agreements have been bilateral. Some of these protect core labour standards.[citation needed][e] Moreover, in domestic tariff regulations, some countries give preference to countries that respect core labour rights, for example under the EC Tariff Preference Regulation, articles 7 and 8.[25]

Conflicts of laws (or private international law) issues arise where workers work in multiple jurisdictions. If a US worker performs part of her job in Brazil, China and Denmark (a "peripatetic" worker) an employer may seek to characterize the employment contract as governed by the law of the country where labour rights are least favourable to the worker, or seek to argue that the most favourable system of labour rights does not apply. For example, in a UK labour law case, Ravat v Halliburton Manufacturing and Services Ltd[26] Ravat was from the UK but was employed in Libya by a German company that was part of Halliburton. He was dismissed by a supervisor based in Egypt. He was told he would be hired under UK law terms and conditions, and this was arranged by a staffing department in Aberdeen. Under the UK Employment Rights Act 1996 he would have a right to claim unfair dismissal, but the Act left open the question of the statute's territorial scope. The UK Supreme Court held that the principle would be that an expatriate worker, would be subject to UK rules if the worker could show a "close connection" to the UK, which was found in Rabat's case.[f]

This fits within the general framework in the EU. Under EU Rome I Regulation article 8,[27] workers have employment rights of the country where they habitually work. They may have a claim in another country if they can establish a close connection to it. The Regulation emphasises that the rules should be applied with the purpose of protecting the worker.[28]

It is also necessary that a court has jurisdiction to hear a claim. Under the Brussels I Regulation article 19,[29] this requires the worker habitually works in the place where the claim is brought, or is engaged there.

However, the European Court of Justice has recently extended the Treaties provisions via case law. Trade unions have sought to organize across borders in the same way that multinational corporations have organized production globally. Unions have sought to take collective action and strikes internationally. However, this coordination was challenged in the European Union in two controversial decisions. In Laval Ltd v Swedish Builders Union[30] a group of Latvian workers were sent to a construction site in Sweden. The local union took industrial action to make Laval Ltd sign up to the local collective bargaining agreement. Under the Posted Workers Directive, article 3 lays down minimum standards for foreign workers so that workers receive at least the minimum rights that they would have in their home country in case their place of work has lower minimum rights. Article 3(7) says that this "shall not prevent application of terms and conditions of employment which are more favourable to workers". Most people thought this meant that more favourable conditions could be given than the minimum (e.g., in Latvian law) by the host state's legislation or a collective agreement. However the European Court of Justice (ECJ) said that only the local state could raise standards beyond its minimum for foreign workers. Any attempt by the host state, or a collective agreement (unless the collective agreement is declared universal under article 3(8)) would infringe the business' freedom under TFEU article 56. This decision was implicitly reversed by the European Union legislature in the Rome I Regulation, which makes clear in recital 34 that the host state may allow more favourable standards. However, in The Rosella, the ECJ held that a blockade by the International Transport Workers Federation against a business that was using an Estonianflag of convenience (i.e., saying it was operating under Estonian law to avoid labour standards of Finland) infringed the business' right of free establishment under TFEU article 49. The ECJ said that it recognized the workers' "right to strike" in accordance with ILO Convention 87, but said that its use must be proportionately to the right of the business' establishment.

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In Canadian law, "labour law" refers to matters connected with unionized workplaces, while "employment law" deals with non-unionized employees.

In 2017, Premier Brad Wall announced that Saskatchewan's government is to cut 3.5 percent from its workers and officers' wages in 2018. This salary cut includes MLA ministers and the Premier's office staff along all people employed by the government. Unpaid days off, will also be implemented as well as limiting overtime to assist the wage cut.[32][33]

Over fifty national and many more state-level laws govern work in India. So for instance, a permanent worker can be terminated only for proven misconduct or habitual absence.[36] In the Uttam Nakate case, the Bombay High Court held that dismissing an employee for repeated sleeping on the factory floor was illegal – the decision was overturned by the Supreme Court of India two decades later. In 2008, the World Bank criticized the complexity, lack of modernization and flexibility in Indian regulations.[37][38]

Mexican labour law reflects the historic interrelation between the state and the Confederation of Mexican Workers. The confederation is officially aligned with the Institutional Revolutionary Party (the Institutional Revolutionary Party, or PRI). While the law promises workers the right to strike and to organize, in practice it is difficult or impossible for independent unions to organize.

In Sweden many workplace issues such as working hours, minimum wage and right to overtime compensation are regulated through collective bargaining agreements in accordance with the Swedish model of self-regulation, i.e. regulation by the labour market parties themselves in contrast to state regulation (labour laws).[40][7] A notable exception is the Employment Protection act which regulates employment contracts and extensive employees' rights to employment under certain conditions.[41]

The Factory Acts (first one in 1802, then 1833) and the 1823 Master and Servant Act were the first laws regulating labour relations in the United Kingdom. Most employment law before 1960 was based upon the Law of Contract. Since then there has been a significant expansion primarily due to the "equality movement"[43] and the European Union.[citation needed] Laws are either Acts of Parliament called Statutes, Statutory Regulations (made by a Secretary of State under an Act of Parliament) or Case Law (developed by various courts).

The first significant expansion was the Equal Pay Act of 1970. This act was introduced to bring about pay equality for women in the workplace. Since 1997, changes in UK employment law include enhanced maternity and paternity rights,[44] the introduction of a National Minimum Wage[45] and the Working Time Regulations,[46] which covers working time, rest breaks and the right to paid annual leave. Discrimination law has been tightened, with protection from discrimination now available on the grounds of age, religion or belief and sexual orientation as well as gender, race and disability.

The Fair Labor Standards Act of 1938 set the maximum standard work week to 44 hours. In 1950 this was reduced to 40 hours. A green card entitles immigrants to work, without requirement a separate work permit. Despite the 40-hour standard maximum work week,[47] some lines of work require more than 40 hours. For example, farm workers may work over 72 hours a week, followed by at least 24 hours off.[citation needed] Exceptions to the break period exist for certain harvesting employees, such as those involved in harvesting grapes, tree fruits and cotton.

Professionals, clerical (administrative assistants), technical, and mechanical employees cannot be terminated for refusing to work more than 72 hours in a work week.[48]
These ceilings, combined with a competitive job market, often motivate American workers to work more hours. American workers on average take the fewest days off of any developed country.[49]

The Fifth and Fourteenth Amendments of the United States Constitution limit the power of the federal and state governments to discriminate. The private sector is not directly constrained by the Constitution, but several laws, particularly the Civil Rights Act of 1964, limit the private sector discrimination against certain groups. The Fifth Amendment[50] has an explicit requirement that the Federal Government not deprive individuals of "life, liberty, or property", without due process of law and an implicit guarantee that each person receive equal protection of the law. The Fourteenth Amendment[50] explicitly prohibits states from violating an individual's rights of due process and equal protection. Equal protection limits the State and Federal governments' power to discriminate in their employment practices by treating employees, former employees, or job applicants unequally because of membership in a group, like a race, religion or sex. Due process protection requires that employees have a fair procedural process before they are terminated if the termination is related to a "liberty", like the right to free speech, or a property interest.

Title VII of the Civil Rights Act is the principal federal statute with regard to employment discrimination, prohibiting unlawful employment discrimination by public and private employers, labour organizations, training programmes and employment agencies based on race or colour, religion, sex and national origin. Retaliation is also prohibited by Title VII against any person for opposing any practice forbidden by statute, or for making a charge, testifying, assisting, or participating in a proceeding under the statute. The Civil Rights Act of 1991 expanded the damages available to Title VII cases and granted Title VII plaintiffs the right to jury trial.[51]

The beginnings of halakhic labour law are in the Bible, in which two commandments refer to this subject: The law against delayed wages (Lev. 19:13; Deut. 24:14-15) and the worker's right to eat the employer's crops (Deut. 23:25-26). The Talmudic law—in which labour law is called "laws of worker hiring"—elaborates on many more aspects of employment relations, mainly in Tractate Baba Metzi'a. In some issues the Talamud, following the Tosefta, refers the parties to the customary law: "All is as the custom of the region [postulates]".
Modern halakhic labour law developed very slowly. Rabbi Israel Meir Hacohen (the Hafetz Hayim) interprets the worker's right for timely payment in a tendency that clearly favours the employee over the employer, but does not refer to new questions of employment relations. Only in the 1920s we find the first halakhic authority to tackle the questions of trade unions (that could easily be anchored in Talmudic law) and the right of strike (which is quite problematic in terms of Talmudic law). Rabbis A.I Kook and B.M.H. Uziel tend to corporatist settling of labour conflicts, while Rabbi Moshe Feinstein clearly adopts the liberal democratic collective bargaining model. Since the 1940s the halakhic literature on labour law was enriched by books and articles that referred to growing range of questions and basically adopted the liberal democratic approach.